Family law – the facts and the myths

Many people have misconceptions about where they stand on various issues when their relationship breaks down. How much do you know? Are you a legal eagle or do you need expert legal advice?

Test yourself in our true or false quiz….

Divorce

Q. If you get divorced you are automatically entitled to half of all the matrimonial assets (assets which have been accrued during the marriage).

FALSE – Although a 50/50 split is often the starting point when considering how the matrimonial assets should be divided, there is no hard and fast rule. There are many factors which are taken into consideration which include: the length of the marriage; each party’s needs; the contributions made by each party, each party’s earning capacity and who will have care of the children. It is therefore possible for either party of the marriage to argue for a higher than 50% share.

Co-Habitees

Q. If you have co-habited with a partner for more than two years you are classed as a common law wife/husband and are then entitled to half of their assets.

FALSE – The term “common law wife/husband” is a complete myth and does not exist in law. The general rule is that on the breakdown of the relationship, co-habitees are entitled to keep the assets which are in their own name.

Q. I own a house with my ex-partner which we bought as joint tenants. I am therefore entitled to half of the equity in the house even though she paid the deposit and the mortgage.

TRUE – Where co-habitees own a house as joint tenants, the presumption is that they own the property in equal shares even if one party has contributed a lot more. It is rare for the courts to go against this.

Children – Parental Responsibility

Q. Unmarried fathers now automatically have parental responsibility for their children if they are named on the birth certificate and present when the birth of the child is registered.

TRUE – For children born after 01 December 2003. Prior to this, unmarried fathers did not automatically have parental responsibility and could only acquire it through either a parental responsibility agreement with the mother or through a court order. Parental responsibility allows the father to have a say in important issues in the child’s life, for example, whether they should have medical treatment, what religion they should be brought up in and how they should be educated etc. The mother will always have Parental Responsibility.

Children – Maintenance

Q. The fact that my ex-partner doesn’t pay me maintenance for the children is a good reason for me to stop him/her seeing them.

FALSE – When the court decides whether to allow an absent parent to have contact with children, the main consideration is the welfare of the child. The presumption is that it is in the child’s best interests to have contact with the absent parent unless there is a good reason why not. The failure to pay maintenance is not considered a good reason.